“Proportionality”
– the doctrine that military attacks must not cause “excessive” harm to
civilian life and property – was not mentioned in any international convention
on the law of armed conflict until Additional Protocol I (1977). Commentaries
by the Red Cross depict AP I’s rule as a return to traditional understandings,
implicitly repudiating their abandonment by the western Allies in the Second
World War. The historical record is quite different. Leading commentators
before the Second World War endorsed food blockades and massive destruction of
infrastructure. American military commentators, down to the 1970s, assessed
World War II practice as broadly consistent with international law. At the time
it was negotiated, AP-I was not seen as a radical departure from Twentieth
Century practice. It should not be interpreted to impose disabling constraints
on contemporary military action. Different military challenges justify
different levels of harm to civilians. The context of military action must matter
as much as any abstract formula like “proportionality.”

This
Article tries to make sense out of the political process doctrine in the wake
of Schuette v. Coalition to Defend
Affirmative Action.

The
political process doctrine made a certain amount of prudential sense when
created in the late 1960s to invalidate referenda overturning fair housing
laws; the Court correctly discerned that these repeals were motivated in
substantial part by racism. Moreover, the justices likely thought that the
constitutional-amendment-by-referendum process was grossly unfair to blacks for
“reverse Carolene Products” reasons,
preventing them from counteracting the political disadvantages of an isolated
and unpopular minority with the advantages of a concentrated interest group.

The
political process doctrine became entirely unstable once the issue of “what’s
good for African Americans” and “what’s motivated by racism” became less clear.
This had occurred both because of a huge decline since the 1960s in racist
attitudes by whites, and because the issues have changed from rectifying overt
racial discrimination to more complex social policies. If the political process
doctrine is unstable with regard to African Americans, it becomes positively
incoherent and unworkable once one considers the diversity both among and
within other “minority” groups.

The
Supreme Court is left with four options when it confronts the political process
doctrine in the future. Option one is to limit the political process doctrine
to the facts analogous to the facts that led to its adoption: a minority group
and its allies manage to get a law or law passed protecting them from
discrimination, but the majority overturns those laws via a constitutional
amendment that changes the political process to their disadvantage.

The
second option is that the doctrine would only apply when voters overturn
government policy meant to mitigate an unambiguous “racial injury” identified
by the Court. This category is likely to be vanishingly small, at best.

Third,
if a liberal majority retakes the Court, it could follow Justice Sotomayor’s
lead and embrace an expansive version of the political process doctrine. How to do this coherently remains unclear.

Finally,
the Court could follow Justice Scalia’s suggestion and eliminate the doctrine.
This path would have the virtue of forthrightness and clarity, but that goes
against the grain of the Supreme Court’s jurisprudence on race, which has long
preferred opacity and complication. Moreover, Scalia is shy three votes for
this reversal.

And
so, the political process doctrine, problematic thought it may be, seems likely
to survive in some form for quite some time.

This
chapter examines the basic model of the law and economics of litigation. Because
the Rules of Civil Procedure and the Economics of the Litigation/Settlement decision
are covered in separate chapters of this volume, this chapter will focus on private
civil litigation, in particular the litigation value of a lawsuit and the incentives
generated for filing a suit. The chapter begins with the simple one-stage single
plaintiff/single defendant investment model of litigation, and sets out the conditions
for filing, default, settlement, and litigation. The analysis then examines the
effects of litigation cost and fee‐shifting as well as
the effects of percentage contingency fee arrangements within the standard one‐stage
model.

The
model is then modified to take into account sequencing and option value. We show
how litigation with multiple stages and the revelation of information alter the
investment value of litigation, as well as the effects of litigation reform proposals
such as fee‐shifting. Finally, the chapter discusses third
party or external effects. We examine how these additional complications affect
the outcome of litigation, the viability of a lawsuit and the predictions of the
standard model of litigation.

This
chapter is not intended to be a comprehensive overview of economic analyses of litigation
and civil procedure (See Cooter & Rubinfeld (1989), Kobayashi & Parker (2000),
Spier (2007)). Rather, this aim of this chapter is to set out the basic mechanics
of the law and economics of private civil litigation, and examine how a more robust
examination of sequential decision‐making in litigation
alters some of the basic predictions of the simple model.

It
is tempting to think that because the Daubert/Rule 702 reliability test has
improved the quality of expert evidence in toxic tort and other cases, applying
that test to federal agency decision making would also improve the quality of
scientific evidence relied upon by agencies. As this Article shows, however,
that supposition is likely wrong, because (a) there is little reason to think
that courts have more institutional competence to deal with scientific issues
than do agencies; (b) much of the criticism of agency reliance on science is
based on the regulatory standard the agency is using, which is not a “Daubert”
issue; and (c) while Rule 702 requires courts to exclude speculative evidence
about past events, the regulatory mission of agencies often requires them to
engage in speculation about prospective risk. Courts have other mechanisms they
can use to nudge agencies toward better scientific decision making, but
“regulatory Daubert” should be a non-starter. There is one major exception:
because Rule 702 evolved to deal with the specific problem of adversarial bias
by expert witnesses, applying Rule 702’s reliability standards is appropriate
when considering expert evidence of causation of individual injury in a hearing
with adversarial experts, as in claims arising under the Vaccine Act.

American
scholars often argue that the Magna Carta embodies a “proportionality
principle” mandating that the punishment fit the crime. This principle,
according to a familiar narrative, found expression centuries later in the
English Bill of Rights, which was reproduced another century later in the
American Bill of Rights. Justices on the U.S. Supreme Court have claimed the
authority of the Magna Carta when infusing the Eighth Amendment with a
proportionality principle not immediately evident from its text.

This Essay explores
and questions the narrative. The argument that the Magna Carta embodies a
proportionality principle seizes upon three Chapters (20 to 22) that provide
that a penalty not exceed “the degree of the offense.” Yet these sections
exclusively concern the Norman practice of amercements—a penalty imposed for a
litany of administrative offenses that were almost never of a criminal nature. Furthermore,
given the prevalence of violent crime and the widespread acceptance of cruel
punishment, it is implausible to project humanitarian motives onto the authors
of Chapters 20 to 22. The Essay concludes with broader reflections on the uses
made of the Magna Carta in this year, the 800th anniversary of its
sealing. Like virtually every legal
document in recorded history, the Magna Carta embodies at some level a
proportionality principle. But as jurists purport to extract more meaningful
and specific lessons from the Magna Carta on this and other points, their
arguments lapse into poor scholarship and hopeless anachronism.

The
selling, buying and licensing of patents is controversial today. Inventors,
companies, and universities who license their patents are labeled with the
“patent troll” epithet, and academics, judges, lobbyists and others have
decried this commercial activity as a new, harmful phenomenon. This historical
claim, though, is profoundly mistaken. This essay contributes to the ongoing
academic and policy debates by presenting new historical data and summarizing
preexisting historical scholarship on the hoary practice in America’s
innovation economy of both patent licensing and the buying and selling of patents
in what economists call a “secondary market.” Famous inventors, such as Thomas
Edison and Charles Goodyear, used this business model, as did many other
inventors and companies. In sum, patent licensing and secondary markets have
long been a key part of America’s innovation economy since the early nineteenth
century.

Private
antitrust litigation is now a reality in the EU and the implementation of the
2014 Directive on actions for damages from competition law infringements will
further stimulate such litigation. In 2013, the Commission also adopted a
Recommendation on Collective Redress, which takes the form of a horizontal
framework whose principles are set to apply to claims regarding rights granted
under EU law in a variety of areas, including competition law. The
Recommendation takes a conservative approach to collective redress, largely due
to the fear that Member States may adopt mechanisms triggering unmeritorious
litigation. Many in the EU consider that the US class actions regime has led to
excessive litigation by entrepreneurial lawyers that, in the end, produce
limited benefits to victims while creating significant costs to society. This
view is, however, questionable since district courts, which are called to
certify class actions, have in recent years exercised a more rigorous analysis
of the claims presented to them. In addition, by opting for an “opt in” regime
and the “loser pays” principle, while not authorizing contingency fees and
punitive damages, the Recommendation may have made it harder for victims with
small claims (i.e., individual consumers that have been overcharged for the
goods they purchase) to obtain compensation for the harm suffered.

In
June 2014, the GCEU confirmed the Decision of the European Commission that
condemned Intel for breaching Article 102 TFEU by adopting exclusive rebates
and “naked restrictions”. This judgment, in which the GCEU considered that in
line with Hoffman-La Roche loyalty
rebates should be quasi-per se
illegal has been subject to many criticisms as not in line with the teachings
of economics. This paper discusses the shortcomings of this judgment and argues
that it is great time for the CJEU to abandon the application of its quasi-per se rule of illegality approach to
exclusive dealing and loyalty rebates and replace it by a structured rule of
reason. Such an approach would have many advantages and create greater
coherence in the case-law of the CJEU on unilateral pricing conduct.

It
was almost certainly some combination of law on the books and law in the works
that inspired the New York World to publish its 1911 version of the Sherlock
Holmes story, “The Adventure of the Norwood Builder,” in not one, but two,
formats. (In its Sunday editions from April 9 to July 2, 1911, the World
republished the thirteen stories from The Return of Sherlock Holmes in their
original sequence, with “Norwood Builder” appearing on April 16.) The law on
the books was a series of interpretations of the Mail Classification Act of
1879 by the U.S. Post Office Department (in 1901) and the U.S. Supreme Court
(in 1904). The law in the works was the ongoing congressional and presidential
interest in tinkering with postal service in general and second-class mail
rates in particular — an interest that manifested itself in 1911 in the form of
hearings conducted in New York City by a special federal Postal Commission
headed by Justice Charles Evans Hughes. The results were: (a) a colorful,
relatively small, booklet version of “Norwood Builder” (and similar booklets of
the other stories in the series) for in-town readers of the World, and (b)
black-and-white, relatively large, tabloid versions of the same stories for
out-of-town subscribers to the newspaper. Unfortunately, decisions by several
of America’s great libraries to discard their hard copies of the World have
left us (at least for now) with the rather plain tabloid version of “Norwood
Builder,” but not the colorful booklet version, to share with readers of the
Green Bag Almanac & Reader.

This
article is the first installment of three articles. This article examines and
appropriates concepts such as metaphysical univocity (a scheme initiated by
John Duns Scotus and enriched by insights proffered by Muslim philosopher Ibn
Sīnā) and then considers the immanent frame as part of my defense of religious
liberty. The second installment applies my defense to current controversies in
the United States. The third installment utilizes ideas and concepts from the
first two articles as part of a comparative study of religious liberty in
Turkey wherein I considers the status of religious minorities within Turkey’s
borders. This tri-part study is sparked by the contention that:

The
freedom to practice one's chosen faith is of vital importance to the United
States. It was a quest for religious freedom that motivated many of America's
founders, and this remains fundamental to [the United States]. As President
Obama said in 2010, "The principle that people of all faiths are welcome
in [our] country, and will not be treated differently by their government, is
essential to who we are." Today, throughout the world and indeed even here
in the [Organization for Security & Cooperation in Europe] (OSCE), governments
and societies are struggling with rising religious diversity even as they are
called upon to protect the fundamental rights of individuals in all communities
who seek to practice their own religious beliefs.

As
[former] Secretary Clinton put it, "religious freedom provides a
cornerstone for every healthy society." The right to believe or not to
believe, and to practice one’s convictions without fear of government
interference or restriction, is a basic human right. Today, religious freedom
is restricted in ways both overt and subtle in too many countries, including
participating States. [Ambassador Ian Kelly, United States Mission to the OSCE,
Delivered at the OSCE (March 3, 2011).]

The first installment
of this project shows there are, indeed, grounds for pessimism regarding the
fate of religious liberty in both the Latin West and the United States.